JUDGMENT :

1. Heard learned counsels for the parties.

2. The second respondent, Director, Ayurvedic and Unani Services, Lucknow, issued an advertisement on 23.05.1987, for appointment on the post of Ayurvedic and Unani Medical Officers in the State of U.P. The advertisement invited applications for 206 posts of Unani Medical Officers and 1194 posts of Ayurvedic Medical Officers. 53 posts was reserved for female candidates. Petitioner, being fully qualified, was called for interview; on being recommended, petitioner came to be appointed by order dated 18.06.1988 on the post of Medical Officer (Ayurvedic). The name of the petitioner finds place at sl.no. 91. Petitioner resumed duty on 12.07.1988 at the State Ayurvedic Dispensary. After appointment, petitioner was posted at various State Ayurvedic Dispensaries. Petitioner after putting in 17 years of service, came to be regularized on 16.03.2005 in terms of U.P. Regularization of Ad-hoc Appointments (on the Post Outside the Purview of Public Service Commission) Rules, 1979[for short “Rule, 1979”]. The name of the petitioner finds place at sl.no. 125. Petitioner retired on the attaining the age of superannuation on 31.01.2014 from State Ayurvedic Dispensary, Guda, District Lalitpur. During the service period, petitioner was sanctioned Assured Carrier Progression scale (A.C.P.), Government Provident Fund and Group Insurance Scheme. Petitioner on retirement claimed pension, however, the same was not considered on the plea that petitioner lacks the requisite qualifying service of ten years. In other words the ad-hoc services rendered by petitioner since 1988 was not being counted towards pensionary benefits. Aggrieved, petitioner approached this Court by filing a petition, being Writ Petition No. 67672 of 2015, which came to be disposed of vide order dated 08.04.2016, directing the competent authority to decide the representation of the petitioner towards counting of ad-hoc service. Pursuant thereof, the impugned order dated 04.01.2018 has been passed by the first respondent, Secretary/Special Secretary, Ayush-1, U.P., Lucknow, whereby, petitioner has been denied the benefit of ad-hoc service.

3. It is noted in the impugned order that the appointment of the petitioner was made on stop gap basis as Medical Officer and not as regular officer of the State Government; petitioner was appointed on temporary basis, hence, not entitled to pension under the Rules governing pension. Petitioner came to be regularized in 2005 and retired in 2014 without completing qualifying service of ten years. It is further submitted that in view of U.P. Qualifying Service for Pension and Validation Act, 2021 (U.P. Act No. 1 of 2021)2 the services rendered by petitioner as ad-hoc employee would not count as “qualifying service” defined thereunder.

4. Learned counsel for the petitioner submits that petitioner came to be appointed against substantive vacancy of Medical Officer in the Unani and Ayurvedic Hospitals of the State Government, the appointment was against the pay scale admissible to a Medical Officer. The appointment was made after due approval by the Hon'ble Governor. As per appointment letter, petitioner was entitled to all benefits of pay scale, D.A., A.C.P. etc. It is not being disputed by learned counsel appearing for the State that appointment of the petitioner was against a substantive vacancy on the post of Medical Officer. The advertisement was duly issued by second respondent on approval of the State Government. Thereafter, services of the petitioner came to be regularized under Rule, 1979. It is further submitted that the services of Medical Officers, Community Health Centre were regularized under Rule, 1979 from retrospective date, i.e., from the date of their appointment on ad-hoc basis. The averment has not been denied in the counter affidavit.

5. It is further urged that services of the petitioner rendered on ad-hoc basis is covered by expression 'qualifying service' as defined under Act, 20